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Wayne Law panelists say Michigan's indigent defense system is inadequate and that sequester threatens indigent defense in federal courts

March 29, 2013

Imagine that you’ve been arrested and wrongly charged with a serious crime, and that you haven’t the money to hire an attorney. A panel of legal professionals at Wayne State University Law School on March 25 lent their expertise to consider what happens next in that instance.

Fifty years ago, the U.S. Supreme Court ruled in Gideon V. Wainwright to extend the Sixth Amendment, requiring state courts to guarantee every criminal defendant in a felony trial the right to a lawyer regardless of ability to pay.

But for lawyers representing the poor today, that system is “in a state of crisis,” in the words of U.S. Attorney General Eric Holder.

And the sequester — a group of automatic federal spending cuts now in place unless and until Congress acts to change them — is putting access to justice for poor federal defendants in even more jeopardy, according to the panelists at a March 25 event held at Wayne Law School to commemorate the watershed Gideon ruling a half century ago. The event was sponsored by the Law School’s Office of the Dean, Wayne Law’s Damon J. Keith Center for Civil Rights and by the U.S. Attorney’s office for the Eastern District of Michigan.

“With sequestration, the federal defendant program, like all federal programs, is being hit very, very hard,” Siefer said.

Because of the sequester, attorneys in her office must take a 21-day furlough beginning in April, and during those mandatory days off, they will not be allowed to talk to a defendant or work on a case in progress in any way, she said.

“To have the caseloads that we do, and then to have this hiatus is really unconscionable,” Siefer said.

Newman asked the students and others in the audience to imagine themselves as unjustly accused, impoverished defendants.

“Your liberty is at stake and your life is in tatters,” she said. “Very minor convictions can have significant impacts on the rest of your life.”

Access to justice is more important than budget cuts, she said.

“There are certain things you have to find money for,” Newman said.

The right to “adequate and reasonable representation” guaranteed by Gideon 50 years ago for indigent defendants in the state system isn’t working the way it should, especially in Michigan, where each county handles the appointment of defense counsel for the poor in its own way without any state standards or regulatory guidance and without any state funding structure, Fancher said.

He spoke of clients often “detained for extended periods of time without ever meeting their lawyers,” and then, on the day of a hearing, having their appointed attorney meet with a prosecutor at the courthouse, get some sort of plea bargain deal, and urge the clients to plead guilty and take the deal, without ever knowing the details of the case or if the clients were innocent or guilty.

The Michigan Advisory Commission on Indigent Defense, appointed by Gov. Rick Snyder in 2011, has found that the state’s patchwork of systems does not meet the American Bar Association’s principles and is “significantly underfunded.”

Fancher talked about an ongoing ACLU lawsuit against the state challenging its indigent defense system as unconstitutional, and of legislation “about to be introduced” to “assess and reform the system.”

“The intent is to establish standards across the board,” Fancher said.

McQuade said that even though she’s a federal prosecutor and Newman is a state defender, both agree that “cost is irrelevant” when it comes to giving indigent defendants in both federal and state courts their constitutional rights.

McQuade said there’s a “cost to public confidence” in the justice system to consider, as well as very real monetary costs that come from inadequate lawyering for poor defendants.

“There is a very significant cost when you don’t get it right the first time,” McQuade said, noting that appeals are costly to the public. “Nobody wins when defendants do not get adequate representation.”

Note: Assistant Defender Valerie Newman, an expert on arguing before the Supreme Court, on the importance of the Gideon ruling and on the modern day application of a criminal defendant's right to counsel, is available to speak to media.To arrange an interview, contact Carol Baldwin, Wayne Law communications director, at 313-577-4629 or carol.baldwin@wayne.edu.